Carretero v Ioannidis

By a notice of motion filed on 20 February 2026, the respondent in the appeal, Ms Maria Ioannidis, seeks an order that the appellant, Ms Melissa Carretero, provide security for costs pursuant to the general provision in r 42.21 and the more specific provision in r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The appeal is listed for hearing on 24 March 2026, which is only approximately three weeks away.

On 15 July 2025, Catsanos SC DCJ delivered final judgment in the District Court in Ms Ioannidis’ favour: see Ioannidis v Carretero [2025] NSWDC 258 (the primary judgment). Damages were awarded in the amount of $101,788.63. Ms Carretero was ordered to pay costs. The proceedings related to Ms Ioannidis’ claim for damages arising from an attack on 24 April 2020 by a dog owned by Ms Carretero.

Ms Ioannidis sought damages on the basis that she suffered bodily injury within the meaning of s 25(1)(a) of the Companion Animals Act 1998 (NSW). She claimed to have suffered both physical and psychological injuries as a result of the dog attack. The award for damages included a significant amount for past and future economic loss in the amount of $35,000.

By a notice of appeal filed 13 October 2025, Ms Carretero raises the following seven grounds of appeal:

I turn to the relevant principles concerning security for costs on an appeal. As noted above, there is both a general and a more specific provision in the UCPR relating to this matter. Under the more specific provision (r 50.50(1)), the Court has the discretion to order security for costs of an appeal if the applicant first establishes that there are “special circumstances”. There are well-established principles guiding the consideration of this requirement. They were conveniently addressed and explained by Basten JA in Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18] as follows:

As Kirk JA observed in Brown v King [2022] NSWCA 75 at [8], the existence of “special circumstances” is a necessary, but not necessarily sufficient, condition of the exercise of the power to order security for costs. The last two of the six matters described above may better be seen as guiding the exercise of the residual discretion, as opposed to the precondition of “special circumstances”.

All relevant matters should be taken into account in exercising the discretion where the precondition of “special circumstances” has been met (see PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321 at 323; [1991] HCA 36). I also respectfully adopt what Kirk JA said in Brown v King at [10]:

I shall first address whether Ms Ioannidis has established that there are “special circumstances” before turning to consider the residual discretion.

As to the condition for the need for special circumstances, the respondent (the applicant on the motion) primarily claimed that special circumstances existed here because of the alleged lack of merits of the appeal and also Ms Carretero's impecuniosity. As to the merits of the appeal, it was submitted by Mr Robison, who appeared for the respondent (the applicant on the motion), that the prospects of the appeal were poor, particularly in circumstances where liability was admitted at trial and none of the grounds of appeal challenges liability. Thus, whatever the outcome of the appeal, it is submitted that liability will stand.

While it is true that even if the appeal prevails liability will have been established, I note that Ms Ioannidis has not challenged the prospects of success affecting damages other than some matters that I will refer to below. It is not for me to express a concluded view at this time as to the merits of the appeal, but, having reviewed the relevant material, including the submissions which have been filed on behalf of both the appellant and the respondent (as settled by Mr Robison of counsel), I cannot conclude that the grounds of appeal do not have real prospects of success.

I also note that on 5 September 2025, Catsanos SC DCJ delivered separate reasons for judgment in respect of Ms Carretero's notice of motion filed below on 18 August 2025 seeking a stay of enforcement of the primary judgment pending the determination of the appeal. His Honour noted Ms Carretero then represented herself. She proposed to seek leave to adduce fresh or further evidence going to the issue of causation. His Honour was satisfied there were at least two potential grounds of appeal which, if of substance, could impact on the appeal's outcome.

His Honour concluded that the then potential appeal was not so lacking in merit as to deny a stay, assuming other relevant requirements were met. This conclusion and reasoning provide some further limited support for my own tentative assessment of the merits as matters stand at present, which now include the notice of appeal and the parties’ written submissions.

Let me turn to the issue of impecuniosity. The evidence regarding Ms Carretero's financial circumstances, including that contained in her affidavit filed 25 February 2026, strongly indicates that it is unlikely that she would be able to meet an adverse costs order if she was unsuccessful in her appeal. Similarly, the evidence strongly doubts her capacity to be able to meet an order for security of costs anywhere in the range presently sought by the respondent, being $80,000 or such other order that the Court might be persuaded to make.

As Kirk JA observed in Brown v King, impecuniosity, particularly when it manifests a strong likelihood of stifling the appeal, may be a special circumstance but it is not likely to be sufficient of itself to found an order for security. Mr Robison properly acknowledged in oral address that Ms Carretero is impecunious, notwithstanding that there seemed to be a suggestion in Ms Vella's affidavit filed on behalf of the respondent that an order for security would not stifle the appeal because Ms Carretero has not provided any evidence of inability to provide security nor has she sought to do so.

I respectfully do not accept that evidence, having regard to what is said in Ms Carretero's affidavit, perhaps significantly dated after Ms Vella's affidavit, (i.e. 25 February 2026). I accept the evidence given there that Ms Carretero is impecunious and I also find that if she was ordered to pay security in any significant amount, it invariably would stifle the appeal.

This also happens to coincide with what Catsanos SC DCJ previously found. His Honour said that it was not controversial that Ms Carretero was of limited means and that her debts appeared to well outweigh her assets. His Honour was satisfied that on the evidence before him at that point that if Ms Carretero succeeded in having the quantum of damages significantly reduced: "It may transform a situation of hopeless financial circumstances leading to bankruptcy to less straightened circumstances, leading to alternatives".

It was in those circumstances that his Honour granted the stay of the enforcement of the primary judgment. I am prepared to accept that the appellant's financial circumstances constitute a special circumstance which triggers the need to exercise the residual discretion in this case, but as will emerge, and as Mr Robison properly acknowledged, impecuniosity is also a relevant consideration in the exercise of the residual discretion.

Another factor which weighs heavily against ordering security is if the effect of such an order would be to stultify the appeal. As Basten JA noted in Preston at [18], “where a bona fide and reasonably arguable appeal would be stifled by an order for security, such an order should usually not be made”.

The matter is not determinative (see Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136), but it is a significant factor pointing against ordering security.

As Kirk JA pointed out in Brown v King at [54], even where the practical effect of ordering security is to bring the appeal to a halt, this will not be a strong factor if the appeal lacks real prospects of success. The difficulty facing Ms Ioannidis in this case, is that, for the reasons given above, I do not consider at this stage that the appeal lacks real prospects of success.

As Mr Robison again frankly and properly acknowledged, ground 3 of the seven grounds of appeal is not beyond argument even though it may present, to use his words, "a difficult ground". That ground relates to the issue of the respondent's capacity for work and is affected by the notice of motion filed by the appellant on 26 November 2025 seeking leave to adduce fresh or further evidence.

That notice of motion is listed to be heard concurrently with the appeal later this month. The fresh evidence relates to social media and other news publications which Ms Carretero claims demonstrate that the respondent was professionally and socially active throughout the period she claimed to be disabled by psychological injury. Ms Carreterro contends that the evidence contradicts the primary judge's findings regarding incapacity, causation and credibility. Ms Carretero has deposed in an affidavit dated 20 November 2025 in support of that notice of motion that although the so called fresh evidence was available prior to the trial (noting that most of it is dated in the period 13 June 2024 to 31 October 2024), she was not in a condition to monitor social media or news material during preparation for the trial because she was under medical and psychological instruction to disengage from proceedings in order to protect her health and pregnancy.

The respondent did not contend that the application to adduce fresh evidence was hopeless. Mr Robison did emphasise that he intended to cross-examine Ms Carretero relating to the requirements for fresh evidence to be admitted on an appeal.

The respondent also emphasised the importance of the Court bearing in mind the need for there to be a proportionality of costs as required by s 60 of the Civil Procedure Act 2005 (NSW) in circumstances where the gravamen of the appeal appears to be directed to reducing that part of the measure of damages amounting to $35,000 for past and future economic loss.

The notice of motion filed 26 November 2025 is listed to be heard on 24 March together with the appeal. I am not satisfied on the basis of the material before me that it is hopeless or doomed to fail. It may well be that an assessment even on a tentative basis of the sort that I am conducting now may change in the light of the foreshadowed cross‑examination but that remains to be seen.

Finally, and importantly to my mind, there is the issue of delay. The motion seeking security for costs was filed more than four months after the notice of appeal was filed and served. The appeal is listed for hearing in approximately three weeks. I am not convinced that any satisfactory explanation has been offered by the respondent for the delay in seeking security for costs. Mr Robison said that part of the reason may relate to the Christmas vacation period intervening. He said that the solicitor with responsibility for the matter did not return from leave until 12 January this year. Yet, it still took until 20 February for the notice of motion to be filed and for the supporting affidavit to be filed. This strikes me as deserving some explanation which has not been forthcoming.

It is well-established that delay is a relevant consideration in such a matter in the exercise of the Court's discretion (see, for example, Boensch v Transport for NSW [2024] NSWCA 86 at [37] per Leeming JA).

I should also state clearly that I do not accept that the issue of delay needs some adjustment in circumstances where Ms Carretero is a litigant in person as opposed to being legally represented and running up considerable legal expenses. It is very clear from the material before me, including the very lengthy written submissions which have been prepared by Ms Carretero totalling almost 160 paragraphs, that she has already invested considerable time and effort in her preparation for the appeal later this month.

For all these reasons, the respondent's notice of motion filed 20 February 2026 will be dismissed with costs.